Each fall, when I teach “Introduction to American Government” and discuss the power of the presidency, I always argue that the pardon power is the most significant and strongest power of the president.

For one thing, it is one of very few constitutionally unilateral powers. In issuing a pardon, the president does not need advice and consent from the Senate—as he does in hiring for the executive branch, making judicial appointments, and signing treaties—and the decision is not reviewable by the Supreme Court. Further, it is the only power that specifically undercuts the legitimate constitutional authority of the other two branches. It exempts someone from having to obey a legitimate law passed by Congress and from being punished for violating that law.

Thus, when Rudy Giuliani opined that “the president probably has power to pardon himself,” he was making a pretty shocking claim, one that has led to much debate. Despite the audacity of such a claim, an examination of the philosophical foundation of the pardon power and of the debate over it at the Constitutional Convention reveals that Giuliani is actually right.

Pardons and Prerogatives

The need for the pardon power may seem difficult to comprehend, but it arises from the very nature of “rule by law.” One of the major benefits of a system of laws, as opposed to rule by a person, is that it treats all people in the jurisdiction the same. Everyone under the law must act the same; the law favors no person because of his or her position, wealth, or power. This fundamental equality before the law is the heart of our constitutional and legal system. However, that very benefit also has a flaw: laws are often too general.

The law, like a fishing net, often captures actions that were not intended to be captured, and sometimes even punishes acts that support the goal or intent of the law. For example, if your neighbor’s house were on fire, and you went into his garage (trespassing) to fight the fire and smashed his car window to push the car out in the driveway to safety, you clearly violated laws in order to actually promote the goal of laws (protecting your neighbor’s property). One would hope that you would not be prosecuted for these acts, but that would require someone to have discretion—and the ability to go around or even against the law’s general treatment.

This issue of needed discretion was understood by John Locke, who, in his Two Treatises of Government, argues for discretion. He writes that we must “provide for the public good in such cases which, depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct” (II.158). This power Locke calls “prerogative.”

Because of the undeniable connection between Locke’s prerogative power and the constitutional pardon power, it is worth examining the limits of the former to understand the limits of the latter.

Locke recognizes that the prerogative power does not merely involve unforeseen circumstances but also “the power to act without the prescription of the law, or even sometimes against it” (II.160). This is a significant power, because it is unbound by the legal order, allowing the ruler to act beyond or against the law. The question is, is there any limit to this power? Locke answers with an emphatic “yes.”

In every discussion of prerogative, Locke notes that all discretionary acts must be “for the public good” (II.156, II.158, II.160), and thus it is clear that the discretionary use of the power must further the primary goal of the political union, which is the public good (II.131). Locke recognizes that the application of this power can lead to a debate whether any particular instance is actually for the “public good,” observing that

the people are very seldom or never scrupulous or nice in the point or questioning of prerogative whilst it is in any tolerable degree employed for the use it was meant—that is, the good of the people, and not manifestly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative, to the good or hurt of the people, will easily decide that question. (II.161)

Thus, Locke recognizes that the public itself must determine whether an act is for the public good. Locke also recognizes that if the discretionary power is used beyond its purpose, that does not invalidate the act, because the power is itself unchecked. Ultimately “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven” (II.168). Thus, the presence of prerogative power inherently means there can be no checks upon its use.

Is it possible that a ruler could use the pardon power on himself for the sake of the public good? It is conceivable. However, even if such a use is not for the public good, there is no higher human authority to whom the people can appeal—at least according to Locke.

Are Presidential Self-Pardons Constitutional?

But does the Constitution, particularly as our founding fathers understood it, really allow the president to pardon himself?

Article II, section 2 notes that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The president’s pardon power cannot extend to state criminal acts, as those are outside his jurisdiction (though most states give their governors some pardon power). Thus, the pardon must apply to a federal crime, and there were at first few federal crimes. Treason, piracy, and murder or larceny in a federal territory were the primary ones. Importantly, however, there were criminal laws about the integrity of the judicial process, which include perjury, bribery, and obstruction of the judicial process. Thus, the founders recognized the ability to pardon for everything from treason to obstruction of justice.

Would our founders think the president could pardon himself? On September 15, 1789, the Constitutional Convention took up discussionof Article II, section 2, with particular emphasis on the pardon power. Edmund Randolph of Virginia (who did not sign the Constitution) moved to add “excepting the cases of treason” from the president’s pardon power. In his view, “The prerogative of pardon in these cases was too great a trust. The president may himself be guilty. The Traytors may be his own instruments.” Randolph’s motion to limit the extent of pardon power was precisely because the founders recognized the president might use such power on himself.

This led to a discussion of where the power of pardon should reside. It was widely held that the legislature was not the proper place, both because of concerns about the separation of powers and because legislators “are governed too much by the passions of the moment.” In this debate, James Madison noted the impropriety of allowing the president to pardon treason, yet he did not think the legislature should have that power. He thought the best plan would be to have the Senate act as council to presidential pardons (though this was never made into an official motion). Despite this debate, Randolph’s proposal was soundly rejected, 8-2, with Connecticut divided (Rhode Island and New York were not represented in the vote).

From this debate, it is clear that the founders recognized the president could legally pardon himself for federal crimes, including treason. However, unlike Locke, who notes that the misuse of prerogative power leads only to the appeal to heaven, James Wilson recognized there was one more appeal: to impeachment. Wilson, summarizing the whole debate, aptly noted: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.” And it is this limitation that Trump advisor Chris Christie recognizes. “If the president were to pardon himself, he’ll get impeached.”

The pardon power’s philosophical roots in Locke’s prerogative power make it clear that the possibility that it will be used broadly and arbitrarily has been recognized from the start. This, combined with the founders’ rejection of limiting either the unitary act of the president to pardon or the pardon’s application to treason so the president could not self-pardon, is indicative that the founders permitted the president to pardon himself. However, they did put two clear limitations upon the pardon power: federal jurisdiction and excluding cases of impeachment.

Thus, Americans who think that a president’s use of a pardon (either on his half-brother, his friends, a previous president, or even himself) is not for the public good can appeal not only to Heaven, but to the legislative branch for impeachment proceedings.

Dr. Nicholas Higgins is married to Anita, is the father of five children, and holds a PhD from the University of North Texas and an MA from University of Dallas. He is Assistant Professor of Politics at Regent University, where he teaches political thought and institutions.

I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant:

To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art—if they desire to learn it—without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.

I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.

What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.

If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.

The Hippocratic Oath, Translated by Ludwig Edelstein

For most of medicine’s history, the Hippocratic Oath provided physicians with foundational principles—a universal standard for the practice of healing. Though modern scholars dispute his authorship, Hippocrates ostensibly wrote it in the fourth or fifth century B.C.E. The first recorded use of the Oath outside of ancient Greece was at the University of Wittenberg in Germany in 1508. And in the eighteenth century the Oath was translated into English. Medical schools in Europe and the United States have since used it as a way of ceremoniously admitting students into the medical profession.

But today, the Hippocratic Oath is not the only ethical code physicians use to guide their practices. The American Medical Association developed its own Code of Medical Ethics and its own Principles of Medical Ethics. The American Board of Physician Specialties created a code of ethics as well. And if that weren’t enough the American Osteopathic Association wrote its own ethical guidelines.

As these new options multiply, the Hippocratic Oath shrinks in significance. Although the practice of oath-taking in medical education increased significantly, from 72 percent in 1969 to 100 percent in 2009, according to a survey of US and Canadian medical schools, only 11.1 percent of schools now use the original version of the Hippocratic Oath. At Harvard Medical School, each class of students writes its own oaths. And 33 percent of schools surveyed use a new oath written in 1964 by the late Dr. Louis Lasagna, former Academic Dean of the School of Medicine at Tufts University.

For many, this is a welcome change. Dr. Robert Shmerling, the Faculty Editor of Harvard Health Publications, wrote in 2015 that the Hippocratic Oath consisted of “well-intentioned but outdated principles.” In an op-ed on euthanasia in the Los Angeles Times in 2014, Nora Zamichow and Dr. Ken Murray argued that, partially because of its prohibition against physician-assisted suicide, the Hippocratic Oath was a “flimsy shield” that physicians hide behind. “Since medicine has already discarded the vast majority of the Hippocratic oath,” they write, “why adhere to the sentence about poisoning, which probably was aimed at reminding physicians not to allow themselves to be enlisted in murder plots?” Emily Woodbury asserted in the Georgetown University Journal of Health Sciences in 2012 that the Hippocratic Oath ought to be discarded. She labeled the Oath as “sexist and elitist in the modern democratic context.” Its religious foundation is “irrelevant” and its cavalier attitude toward patient autonomy is “unacceptable.”

Admittedly, there are aspects of the Oath that are anachronistic. For instance, if we take the Oath literally, invoking Apollo and Asclepius doesn’t make much sense in an era when we no longer worship Greek gods. The author references “sons” over and over again and “brothers in male lineage,” implying perhaps that women are somehow unfit for or irrelevant to the profession. Today, females make up 50.7 percent of students entering medical school. Future physicians also utter the words “I will not use the knife,” resolving not do surgery. And yet surgeons are doctors as well.

Nevertheless, the Hippocratic Oath is more than simply outdated detritus. Its meaning is still rich and very much relevant. And we would be wise to look more closely at it.

The invocation of Greek gods is powerful. It is an acknowledgment of forces beyond our control that we don’t always understand. Many of our treatments work, but sometimes they do not. There are also diseases for which no treatments are available. Patients die or fall ill without a sensible explanation, mystifying and confusing us. Referring to powers greater than our own acknowledges our limitations and the limitations of our knowledge. It humbles us.

In the second paragraph, one declares loyalty to one’s colleagues, teachers, and future members of the profession. Perhaps this grew out of medicine as an apprenticeship: one spent time with one’s mentor, and it became a paternal relationship. Even today, though, teachers have a tremendous influence on what medical students decide to do. Trainees owe thanks to these doctors. But there is more. Dr. Leon Kass, a bioethicist who trained as a physician, wrote about the Hippocratic Oath in his book Toward a More Natural Science: Biology and Human Affairs, touching on this particular question of the mentor-student relationship. He writes:

Such a physician will understand that he is not a self-made or self-sufficient man, and that a belief in his own autonomy and independence is mistaken. He will appreciate that he owes both his life and his work to those who came before, that the art of medicine, like the rest of civilization, is a monument to the ancestors. By remembering his teacher and looking to his students, he will be kept aware of his ownmortality, not only as a human being, but also as a practitioner of the art, while at the same time being called to remember the potential immortality of the art itself.

And in remembering this, one understands the importance of mentoring the next generation.

Subsequently the student swears to offer dietetic measures “for the benefit of the sick.” As doctors, we frequently prescribe medications. High cholesterol? High blood sugar? High blood pressure? A medication ameliorates the pathology. But many of these chronic conditions don’t necessarily require medication. They require lifestyle changes: exercise, fruits and vegetables, smaller portions. These are not easy changes, but they are within our control. Just as importantly, offering these lifestyle interventions demonstrates a respect for the patient’s power over his or her health. The doctor merely pulls back the curtain to remind the patient of this. As Kass writes,

I mean to emphasize the Hippocratic Oath’s tacit assertion that medicine is a cooperative rather than a transforming art, and that the physician is but an assistant to nature working within, the body having its own powerful (even if not invincible) tendencies toward healing itself.

The Hippocratic Oath then addresses euthanasia and abortion. It reads: “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy.” I don’t want to make a case for or against euthanasia or abortion in this particular essay. However, we ought to think about these issues as physicians and how they relate to what it is that we do. Doctors regularly treat human beings at the beginnings and ends. Both abortion and euthanasia force us to ask when the beginnings and ends are and when it is appropriate to intervene. The Oath comes down on one side of this question. A physician is free to disagree with its conclusion, but he or she must, at the very least, consider it.

In the next part of the Oath, the student resolves not to perform surgery: “I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.” Why would future surgeons take such an oath? This seems anachronistic indeed. But we need to interpret this line liberally. It is sometimes tempting in medicine to fill the role expected of you by the patient. As a neurologist, I know very little about lung cancer. But when I take care of patients with lung disease, they sometimes ask me questions about the potential treatments available to them. I don’t know the answers to these questions. To pretend to know, to occupy that role, would be grossly irresponsible and unethical. An internal medicine doctor should not operate. And a general surgeon should not be treating Parkinson’s Disease. This part of the Oath makes it clear that, for the sake of the patient, a doctor should do only what he or she is able to do and nothing more.

And when a doctor can do something for the patient, ethical deportment is vital, especially when it comes to privacy and the private dwellings of the patient. The Oath forbids the physician from entering the patient’s house to perform “intentional injustice” and from having sexual relations with the patient. This passage glows with significance and is still relevant. As Kass explains,

The physician is both privileged and burdened by this exposure of vulnerability. He has the opportunity, rarely given to other human beings, to see without illusion the darker side of the human condition, and to see humanity, unprotected and stripped of pretense, struggling gamely to preserve itself. He is privileged to receive the trust implied by admission to the house, to the inner sanctum of the patient’s life-world. Yet this trust is also a burden or at least a responsibility that it would be self-contradictory to violate.

A doctor should never take advantage of a patient’s vulnerability. To do so would contradict all that the physician does to gain the patient’s trust. This trust relies on the assumption that the doctor is here only to heal and nothing else. How disastrous it would be if patients needed to worry about an ulterior motive of their physicians!

Finally, at the end of the Oath, the student acknowledges the consequences of violating the promises just made. These principles are so integral to the profession that to violate them would be to abdicate one’s moral and professional standing. Such violations sooner or later decimate the bond of trust between physician and patient, leaving the profession and the patient in tatters. The Oath, then, offers physicians of any generation guidelines, proscriptions, and prescriptions on how to be to a good physician. We may not agree with all of its conclusions, but if we dismiss them without a second thought, we do so at our own peril.

Aaron Rothstein, MD, is a neurology resident at the NYU School of Medicine and blogs regularly for The New Atlantis at http://practicing-medicine.thenewatlantis.com/.